The Climate Docket

By Karen Savage

The Paris climate agreement may have been relatively simple for President Donald Trump to decide to back the U.S. out of, but he has not been able to shake the 21 kids pursuing a federal lawsuit against his administration for violating their right to a safe and livable climate.  Their suit, Juliana v. United States, has survived numerous efforts to dismiss and derail the case by the government and the fossil fuel industry, which voluntarily entered the case as co-defendant but has now retreated from the lawsuit altogether.

The lawsuit, initially filed in 2015 against President Barack Obama and the federal government, is the first case in which a U.S. court recognized the constitutional right to a safe climate, described by District Court Judge Ann Aiken as “the right to a climate system capable of sustaining human life.” And it will put the Trump administration’s ardent pursuit of greater fossil fuel development and other anti-climate policies on trial early next year.

Three industry groups—the American Petroleum Institute (API), the National Association of Manufacturers (NAM) and the American Fuel and Petrochemical Manufacturers (AFPM)— voluntarily joined as co-defendants shortly after the case was filed to advocate for their interests in getting the case dismissed. However, they lost all of those early attempts to derail the case and faced the scary prospect of discovery once it became clear that the case is headed to trial. That’s when they successfully negotiated their exit from the case.

In May, the industry groups told the court they now “want off the bus,” and then made a formal request to withdraw from the lawsuit. Magistrate Judge Thomas Coffin approved their request on June 28.

In his ruling, Judge Coffin pointed out that even though the government has admitted to several of the plaintiffs’ claims, the intervenors refused to take a position on climate change. In court filings, industry intervenors repeatedly claimed to have a “lack of sufficient information to admit or deny” almost all of the plaintiff’s allegations.

To those claims, Judge Coffin responded with skepticism, writing “the court has no doubt that they have thoroughly studied the issue at the core of this case and are in a position to tender their own scientific evidence regarding climate change.”

While that decision meant former API chairman and current Secretary of State Rex Tillerson will no longer be deposed in this case as a representative of API, he is not entirely off the hook. He could still face a deposition as secretary of state and may have to testify to API activities in a separate suit in Colorado, also led by Our Children’s Trust. API remains an active intervenor in Martinez v. COGCC. In that suit, youth plaintiffs are hoping to prevent Colorado from issuing drilling permits unless science demonstrates drilling is safe and won’t contribute to further climate change.

Michael Burger, executive director of Columbia Law School’s Sabin Center for Climate Change Law, said it’s difficult to say whether or not fear of discovery was behind the intervenor’s decision to withdraw.

“The industry groups likely intervened in the litigation because they believed the federal government, including the Department of Justice, under President Obama would not represent their perspective or interests,” Burger said, adding that with Donald Trump in the White House, Scott Pruitt heading the Environmental Protection Agency and Jeff Sessions heading the Justice Department, the intervenors no longer had that concern.

The industry groups’ withdrawal from the federal case  came as the government lost its request  for an interlocutory appeal, which allows for an immediate appeal of a decision that is made before the case is concluded. Judge Aiken swatted down the government’s initial appeal, on June 8, but a second appeal was quickly escalated to the Ninth Circuit Court of Appeals in another out-of-protocol move by the government to get the case dismissed.

Yale Law School professor Doug Kysar said a decision on the government’s latest appeal— called a petition for a writ of mandamus—will likely come sooner than an ordinary appellate ruling.

“I would expect the Ninth Circuit to deny the writ and for the government to appeal to the Supreme Court,” said Kysar, who has written on climate change and the law.  Kysar said such an appeal will further delay the trial and if overturned, could change the precedent on mandamus relief.

While pursuing the mandamus appeal with the Ninth Circuit, the government is simultaneously trying to avoid the next phase of the case: discovery. Document disclosures and personal testimonies  could provide further evidence that the country has been working against climate action despite knowing the dangers of climate change for decades. Because the industry trade groups have withdrawn and are no longer parties to the lawsuit, they will not be subject to discovery, but their actions over the years could be exposed in communications with federal agencies.

Burger said the U.S. government’s knowledge on climate change is a matter of public record.

“We all know that politicians, bureaucrats and scientists inside and outside the federal government have understood since at least 1965 that climate change is a serious threat to human health and well-being, and to the environment,” said Burger.

He said since then Congress has established the U.S. Global Change Research Program and other research initiatives. “Yet, we did not have any regulations addressing climate change on the books for half a century,” he added.

He said government documents and testimony “might reveal some behind closed door conversations and nefarious purposes, which could influence the court in deciding whether or not rights have been violated. But the case does not turn on that kind of information coming to light.”

On the other hand, industry documents are not part of the public record.

“I’d be less surprised with that sort of information turning up in industry documents and testimony than in anything the government has on file,” Burger said.

The Kids Want Their Day in Court

The 21 plaintiffs, meanwhile, have stayed tuned in to all the legal developments and eagerly await the trial. But even when the momentum of the case has gone in their favor, they haven’t forgotten the reason they got involved.

Recently, 14-year-old Jayden Foytlin felt the familiar rush of panic that led her to be one of the plaintiffs to begin with.  

“I woke up to an alert saying there was going to be flooding in my area and I looked outside and it was raining really hard,” Foytlin said. Last August, Foytlin was one of tens of thousands of Louisianans whose homes were inundated when torrential rain swept through the state. Water-logged stuffed animals, notebooks and childhood mementos had to be thrown away and for months she slept in the living room with her brothers while their bedrooms were gutted and remediated for mold. Such extreme storms are expected to become even more frequent as climate change worsens.

“The case will be going forward—we’re definitely going to trial,” Foytlin said confidently after a recent court ruling. “I can’t wait!”

The young plaintiffs come from across the country and range in age from 9 to 21. They claim that  the federal government has failed to protect them, their families and future generations from the effects of climate change.  To ensure a safe and livable climate and remedy these violations, they argue that the government to must immediately implement a science-based plan to protect the climate for future generations.

“The whole point of the case is that climate change is affecting kids and we’re standing up for our constitutional rights,” said Foytlin, whose family lives in Rayne, La.

Philip Gregory, lead attorney for the youth plaintiffs, likens the case to previous U.S. Supreme Court cases, including the Brown v. Board of Education decision and the Brown v. Plata decision.

In the Brown v. Board of Education decision, the U.S. Supreme Court found that subjecting black children to a separate but equal education was a violation of their Fourteenth Amendment right to equal protection under the law.

In Brown v. Plata, the Court found that prison overpopulation was a violation of prisoners’ Eighth Amendment constitutional right to be protected from cruel and unusual punishment.

“In both cases, the civil rights cases and the prison reform cases and in others, what the trial courts were ordered to do was in essence set a target or a goal to eradicate the constitutional violation,” Gregory said, adding that in those landmark cases the local governments were required to develop and implement a plan to meet court-ordered targets.

“And that’s exactly what we want here,” he said.

Attorneys from the Department of Justice, which represents the federal government, declined to comment. The American Fuel and Petrochemical Manufacturers also declined to comment.  The American Petroleum Institute and the National Association of Manufacturers did not respond to requests for comment.

While the trade groups will avoid having to defend their positions on the science in this case, the government has no such escape hatch. Government agencies for years have documented the progress of climate change and have warned of its impacts.

Before leaving office, the Obama administration filed the government’s official response to the case, admitting in court documents that CO2 levels have reached 400 parts per million (ppm) and that sea level rise is actually slightly greater than what plaintiffs have claimed.

(The industry intervenors had claimed to “lack sufficient knowledge to admit or deny” plaintiff’s claims that monthly global average concentrations of CO2 have reached 400 ppm. Similarly, they also claimed to “lack sufficient knowledge to admit or deny” levels of sea level rise.)

Gregory said expert testimony will include science historian and Merchants of Doubt, author Naomi Oreskes, an authority on the similarities between climate change science and tobacco science, who will serve as an expert witness for the plaintiffs.

“We believe it’s like tobacco,” said Gregory, adding that a handful of the some of the same scientists who denied the dangers of cigarette smoke have worked to deny climate change.

“What we’re going to do is to present scientific testimony to Judge Aiken that we have a serious problem,” Gregory said, adding that the damage was caused by the U.S. government both in its own activities and by its policies that enabled others to cause damage, such as by leasing federal lands for mining or deepwater drilling.

The case will also examine the effect the federal government’s policies have had on the young plaintiffs.

“A lot of people don’t realize that in Brown v. Board of Education, the underlying evidence was that the separate but equal policies were having damaging psychological effects on the black school kids and that was the evidence,” he said.

Back in Louisiana, Foytlin said her state is losing land faster than other parts of the country and a recent executive order by President Trump will allow more oil drilling in the Gulf, something she fears will cause even more land loss and sea-level rise.

The high school sophomore said since last year’s flood, even the sound of the alert on her phone makes her anxious and afraid. Recently, Louisiana Gov. John Bel Edwards declared a State of Emergency due to rapid land loss.

Although the latest round of storms did not cause major flooding, Foytlin said she worries the next disaster is right around the corner.

Her mother’s insurance company is also worried. After the flood, it canceled her mother’s homeowners’ insurance and the family is now forced to pay more for insurance through her mortgage company.

But Foytlin said there is a bright side to it all.

“Some people in Rayne are finally noticing the sea level rise is caused by drilling and is a big part of our flooding,” she said, adding that the first step in solving the problem is to acknowledge its existence.